1. ' This appeal is directed against the judgment, dated 7-8-1995 passed in Criminal Case No,388 of 1994 by the learned Sessions Judge, Karachi West.
2. ' The appellant was convicted under section 320, P.P.C. And sentenced to suffer R.I. For five years and to pay compensation amounting to Rs,40,000 to the heirs of the deceased or in default to undergo R.I. For six more months.
3. ' Vide report No,16 it was reported by H.C. Muhammad Afzal of Police Control on 12-7-1994 that M.L.O.
4. Dr. Kaleem of Abbasi Shaheed Hospital had reported that one person namely Muhammad Taj son of Kaura Khan resident of B-309 Gulshan-e-Ghazi met with an accident at Shah Paracha Chowk and his dead body was brought to the hospital by his brother Ghustaseeb Khan. Subsequently, after investigation the case was challaned and the appellant was tried and convicted as mentioned above.
5. ' I have heard Mr. Sardar M. Ishaque learned counsel for the appellant and Mr. Agha Zafir learned counsel for the State and have perused the record.
6. ' At the very outset learned counsel for the appellant contended that appellant's statement under section 342, Cr.P.C. Was recorded on 15-5-1995 and he referred to the following:-- "Q. Do you want to examine yourself on oath? A. Yes Sir.
7. Q. Do you want to lead defence?
8. ' A Yes Sir."
9. ' It was further pointed out by the learned counsel for the appellant that after recording of his statement under section 342, Cr.P.C. The appellant engaged another Advocate who submitted the following statement on 6-6-1995.
10. "It is prayed on behalf of the accused above named that this Honorable Court be pleased to bring on record of this statement that undersigned counsel does not wants to examine the accused on oath as defence witness."
11. ' It is contended by the learned counsel for the appellant that newly engaged advocate was neither instructed by the appellant to make the above statement nor he obtained his signature on the said statement before submitting the same in Court. With the result the appellant has been condemned unheard as he was not given any opportunity to examine himself on oath or to produce his evidence in defence.
12. ' Learned counsel for the State frankly conceded that the appellant was denied a fair trial.
13. 'There is considerable force in the above submissions of the learned counsel for the appellant. It is pertinent to note that in the first instance the newly engaged Advocate before submitting the statement, dated 6-6-1995 should have obtained signature of the appellant or he should have mentioned that the statement was being submitted under instructions from the appellant. The record shows that the appellant had signed all the relevant papers in Urdu which indicate that he is not conversant with English language and it appears that his learned counsel did not explain to him the implication of the said statement. Notwithstanding this aspect, even assuming for the sake of argument that the statement made by the learned counsel is valid, the fact remains that the appellants in response to question No,6 had given an affirmative answer as he wanted to produce evidence in defense. Denial of this opportunity amounts to denial of fair trial. The concept of fair trial has been very aptly dilated upon as under:-- "Fair trial. The term ' fair trial' has been variously defined. A fair trial is a legal trial; one conducted according to the rules of common law except in so far as it has been changed by statute; one where the accused's legal rights are safeguarded and respected. A fair trial is a proceeding which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial. A fair trial is that which is such in contemplation of law, namely, that which the law secures to the party, and a fair trial before an impartial jury means one where the jurors are entirely indifferent between the parties. The necessary factors in a fair trial are an adequate hearing and an impartial tribunal, free from any interest, bias, or prejudice. A fair trial is one likely to accomplish full justice within human limitations."
14. (Corpus Juris Secundum) (Vol. 88 CJS Ed, 1955 P.88)
15. In such circumstances in my humble view it is not a mere irregularity but an illegality which is not curable under section 537, Cr.P.C. Therefore, the impugned judgment is not sustainable in law which is set aside. The case thus is remanded back to the learned trial Court. However, in order to set the record straight it is directed, that the statement of the accused under section 342, Cr.P.C. Be recorded afresh and retrial should commence from this stage. Thereafter the matter may be disposed of according to law. The appellant is on bail. He shall continue to remain on bail till his appearance before the learned trial Court.
16. ' The appeal stands disposed of in the above terms.